Chapter 08 - Proceeding to Determine Deportation of Alien in American Samoa-Apprehension, Custody, Hearing, and Appeal

Chapter 08 - Proceeding to Determine Deportation of Alien in American Samoa-Apprehension, Custody, Hearing, and Appeal

(a) Commencement. Pursuant to 41.0610 of the Act the Attorney General may order the arrest and detention of any person pending a determination of that person's deportability. Any person taken into custody, may. in the discretion of the Attorney General, pending a final determination of deportability, (1) be continued in custody: (2) be tree on bond for an amount not less than the cost of one-way transportation to the country from where he/she came plus $500, with security approved by the Attorney General and containing such conditions the Attorney General may prescribe: or (3) be released on conditional parole. The Attorney General has delegated to the chief immigration officer the authority to make such arrest in accordance with law. Any person so arrested may appeal the decision to the board. Every proceeding to determine the deportability of an alien in American Samoa to the board is commenced by the issuance and service of an order to show cause by the office, or on appeal by the alien. In the proceedings the alien shall be known as the respondent.

(b) Statements of Nature of Proceedings. The order to show cause will contain a statement of the nature of the proceeding, the legal authority under which the proceeding is conducted, a concise statement of factual allegations informing the respondent of the actor conduct alleged to be in violation of the law and a designation of charges against the respondent and the statutory provisions alleged to have been violated. The order will require the respondent to show cause why he/she should not be deported. The order will call upon the respondent to appear before the board for a hearing at a time and place which may be stated in the order or may be later specified. Respondent shall be notified of the time and place of the hearing not less than 7 days before the hearing date except that where the issuing officer, in his/her discretion, the public interest, safety or security so requires, may schedule the hearing on shorter notice. The issuing officer may, in his/her discretion, schedule the hearing on shorter notice in any other case at the request and for the convenience of the respondent.

(c) Service. Service of the order to show cause may be accomplished either by personal service or routine service: however. when routine service is used and the respondent does not appeal for a hearing or acknowledge in writing that he/she has received the order to show cause, it shall be reserved by personal service. When personal delivery of an order to show cause is made by an immigration officer, contents of the order to show cause shall be explained and the respondent shall be advised that any statement she/he makes may be used against him/her. He/she shall also be advised of his/her rights to representation by counsel of his/her own choice at no expense to the government. He/she shall also be advised of the availability of free legal services programs in American Samoa if any. He/she shall also be furnished with a list of such programs.

(a) Warrant of Arrest. At the commencement of any proceeding under this part, or at any time thereafter and up to the time respondent becomes subject to supervision under the authority contained in the Act, the respondent may be arrested and taken into custody under the authority of a warrant of arrest. However, such warrant may be issued by no one other than a member of the board, and then only whenever, in his/her discretion, it appears that the arrest of the respondent is necessary or desirable and is substantiated by an affidavit. If, after the issuance of a warrant of arrest, a determination is made not to serve it, any officer authorized to issue such warrant may authorize its cancellation. When a warrant of arrest is served under this part, the respondent shall have explained to him/her the contents of the order to show cause: the reason for the arrest and right to be represented by counsel of his/her choice at no expense to the government. He/she shall also be advised of the availability of free legal service programs, if any, and furnished with a list of such programs. He/she shall be advised that any statement made may be used against him/her. He/she shall also be informed whether he/she is to be continued in custody, or if release from custody has been authorized, of the amount and condition of the bond or the conditions under which he/she may be released. A respondent on whom a warrant of arrest has been served may apply to the Attorney General for release or for amelioration of the conditions under which he/she may be released.

(b) Authority of the Immigration Board of Appeals. After an initial determination pursuant to subsection (a) of 41.080 1 of this chapter, and at any time before a deportation order becomes administratively final, upon application by the respondent for release from custody or for amelioration of the conditions under which he/she may be released, the board may exercise the authority contained in the Act to continue or detain a respondent in, or release him/her from custody, and to determine whether a respondent shall be released under bond, and in the amount thereof, if any. Application for the exercise of such authority may be made to the board. Consideration under this subsection by the board of an application or request of an alien regarding custody or bond shall be separate and apart from any deportation hearing or proceeding under this part, and shall form no part of such hearing or proceeding or of the record thereof, the determination of the board as to custody status or bond may be based upon any information which is available to the board or which is presented to the board by the alien or the officer.

(c) Revocation. When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time at the discretion of the Attorney General, in which event the alien may be taken into physical custody and detained. 1 f detained, unless a breach has occurred, any outstanding bond shall be revoked and cancelled. Subsection (b) of this section shall govern availability to the respondent of recourse to other administrative authority for release and custody.

(d) Privilege of Communication. Every detailed alien shall be notified that he/she may communicate with the counsel of diplomatic officers of the country of his nationality. Existing treaties require immediate communication with appropriate counselor of diplomatic officers whenever nationals or certain countries are detained in exclusion or expulsion proceedings, whether or not requested by the alien, and, in fact, even if the alien requested no communication be undertaken in his/her behalf. See Appendix A following this title.

(a) Service. If the respondent is confined, or if he/she is incompetent, or a minor under the age of 14, the order to show cause, and the warrant of arrest, if issued, shall be served in the manner described in this chapter upon the person or in the person's name.

(b) Office Custody-Cost of Maintenance. An alien confined because of physical or mental disability in an institution or at the hospital will not be accepted into physical custody by the office until an order of deportation has been entered and the office is ready to deport the alien. When such an alien is an inmate of a public or private institution at a time of the commencement of the deportation proceedings, expenses for the maintenance of the alien shall not be incurred by the government until the alien is taken under physical custody by the officer.

(a) Authorized Officers. The authority contained in 41.0601 ASCA may be exercised by any immigration officer. Any person remaining in American Samoa beyond the time allowed by law or the board who voluntarily departs before a hearing is held by the board is prohibited from reentering American Samoa for any purpose for one year. Any person, ordered deported by the board, remaining in American Samoa beyond the time allowed by law or the board is prohibited in reentering American Samoa for any purpose for one year , and for 5 years is not eligible under the numerical limitations of chapter 3 of the Act.

(b) Authorization. Voluntary departure may be granted to any alien who is statutorily eligible. A person who has voluntarily surrendered him/herself to the office or in whose case the chief immigration officer has determined there are compelling factors to warrant him to grant voluntary departure are eligible.

(c) Period of Time. Any grant of voluntary departure shall contain a time limitation of usually not more than 10 days, and an extension of the original voluntary departure time shall not be authorized except under meritorius circumstances and approved by the Attorney General. Upon failure to depart, deportation proceedings will be pursued.

(d) Application. Any alien who believes him/herself to be eligible for voluntary departure under the Act may apply therefore at the office any time prior to the commencement of the deportation proceedings against him/her or if deportation proceedings have been commenced, any time prior to the commencement of the hearing. Any immigration officer may deny or grant the application and determine the condition under which the alien's departure shall be affected. An appeal shall not lie from a denial of an application for voluntary departure under this section, but the denial shall be without prejudice to the alien's right to apply for relief from deportation under any provision of law.

(e) Revocation. If, subsequent to the granting of an application for voluntary departure under this section, it is ascertained that the application should not have been granted, that grant may be revoked without notice by the chief immigration officer.

Any alien who has been advised that he/she has been accused of violating the immigration laws of American Samoa shall have the right to waive their rights before the board. Any officer may provide a fom1 to any alien who desires to waive their rights that they have been advised that because of the alleged violation he/she may be deported from American Samoa; however, before he/she can be deported the alien has a right to a hearing before the board. The officer shall advise the alien when the board will meet and where: the alien shall be advised that at a deportation hearing before the board, the alien has the following rights:

1. A reasonable notice of the nature of the charge against the alien and the time and place of the hearing;

2. To be represented by counsel of alien's choice at no cost to the government;

3. A reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's behalf and cross-examine witnesses:

4. The right to have witnesses subpoenaed to testify before the board on the alien's behalf:

5. That no decision of deportability will be valid unless it is based on reasonable, substantial and appropriate evidence.

The form shall also advise the alien that because of an overlay in American Samoa beyond the time allowed by law or the board that the alien can be prohibited from reentering American Samoa for five years and not eligible under the numerical limitations of 41.030 1 et seq. of the Act for 10 years. The alien will be required to sign a statement saying that the alien has carefully read the waiver and understands all rights before the board and that therights are waived and the alien does not desire a board hearing, but rather consents to be placed on the next available transportation to the alien's home. The alien is to receive a copy of the waiver and sign a statement that he/she understands.

(a) If an order to show cause has been issued by any officer, the office may cancel the order to show cause or, prior to the actual commencement under a served order to show cause, terminate proceedings thereunder, if in either case he/she is satisfied that the respondent is actually a national of the United States or an American Samoan, or is not deportable under the immigration laws, or is deceased, or is not in American Samoa, or the proceedings was improvidently begun; or after actual commencement of a hearing such officer may move that the case be remanded to the office on the grounds that it has come to the attention of the office that they are involved in the foreign relations of the United States which require further consideration. Cancellation of an order to show cause or termination of proceedings or remand of a case pursuant to the foregoing shall be without prejudice to the alien or the office. If an order to show cause has been cancelled or proceedings have been terminated pursuant to this section, any outstanding warrant of arrest shall also be cancelled.

(b) The basis and purpose of the prescribed rules in subsection (a) of this section are to empower the immigration office to issue and cancel orders to show cause and to empower the office to request warrants of arrest.

(a) Opening. The immigration board shall advise the respondent of his/her right to representation, at no expense to the government by counsel of his/her choice authorized to practice in the proceedings and require the alien to state then and there whether the alien desires representation; advise the respondent of the availability of free legal services programs if any; ascertain the respondent has received a list of such programs; advise the respondent that he/she will have reasonable opportunity to examine and object to the evidence against him/her, to present evidence in his/her own behalf and to cross-examine witnesses presented by the government; place respondent under oath; read the factual allegations and the charges in the order to show cause to the respondent and explain them in nontechnical language, and enter the order to show cause as an exhibit in the record. Deportation hearings shall be opened to the public except, that the board may, in its discretion and for the purpose of protecting witnesses, respondent, or public interest, direct that the general public or particular individuals shall be excluded from the hearing in any specific case. Depending upon physical facilities, reasonable limitation may be placed upon the number in attendance at anyone time, with priority being given to the press over the general public.

(b) Pleading by Respondent. The board shall require the respondent to plead to the order to show cause by stating whether he/she admits or denies the factual allegations and deportability under the charges contained therein. If the respondent admits the factual allegations and admits the deportability under the charges and the board is satisfied that no issue of law or fact remains, the board may determine that the deportability as charged has been established by the admissions of the respondent. The board shall not accept an admission of deportability from an unrepresented respondent who is incompetent or under age 16 and is not accompanied by a guardian, relative or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this subsection, the board may not accept an admission of deportability, it shall direct a hearing on the issue.

(c) Issues of Deportability. When deportability is not determined under the provision of subsection (b) of this section, the board shall request the assignment of an assistant attorney general, and shall receive evidence as to any unresolved issues, except that no further evidence need be received as to any facts admitted during the pleading.

(d) Additional Charges. An assistant attorney general who has been assigned to a case may at any time during a hearing lodge additional charges of deportability, including factual allegations against the respondent. The additional factual allegations and charges shall be submitted in writing and entered as an exhibit in the record. The board shall read the additional factual allegations and charges to the respondent and explain them to him/her in nontechnical language. The board shall advise the respondent, if the alien is not represented by counsel, that he/she may be so represented and that he/she may have a reasonable time within which to meet the additional factual allegations and charges. The respondent shall be required to state then and there whether he/she desires a continuance for either of these reasons. Thereafter, the provision of subsection (b) of this section shall apply to the additional factual allegations and lodged charges.

(e) The board shall conduct proceedings under this chapter to determine the deportability of any person. Determination of deportability shall be made only upon a record made in a proceeding before the board and the person shall have a reasonable opportunity to be present unless by reason of a person's incompetency it is impractical for him/her to be present; in which case the board shall prescribe necessary and proper safeguards for his/her rights and privileges. If any person who has been given a reasonable opportunity to be present at a proceeding under this chapter and without reasonable cause fails or refuses to attend or to remain in attendance, the board may proceed to a determination in a like manner as if the person were present.

(1) Contents. The decision of the board may be oral or written. Except when deportability is determined on the pleading pursuant to subsection 41.0807(b) of this chapter, the decision of the board shall include a discussion of the evidence and findings as to deportability. The formal enumeration of findings is not required. The decision shall also contain a discussion of the evidence pertinent to any application made by the respondent and the reason for granting or denying the request. The decisions shall be concluded with the order of the board.

(b) Summary Decision. Notwithstanding the provisions of subsection (a) of this section, in any case where deportability is determined on the pleadings pursuant to the subsection 41.0807(b) or the respondent applies for voluntary departure and the board grants the application, the board may enter a summary decision, if deportation is ordered or if voluntary departure is granted with an alternate order of deportation.

(a) Written Decision. A written decision shall be served upon the respondent and the Attorney General together with the notice informing the respondent of appeal right. Service by mail is complete upon mailing.

(b) Oral Decision. An oral decision shall be stated by the board in the presence of the respondent and the assistant attorney general, if any, at the conclusion of the hearing. A typewritten copy of the oral decision shall befurnished at the request of the respondent or the Office of the Attorney General. (c) Summary Decision. When the board renders a summary decision, it shall serve a copy thereof upon the respondent at the conclusion of the hearing.

The immigration board may upon its own motion or, upon motion of the respondent or the assistant attorney general reopen or reconsider any case in which it made a decision. A motion to reopen will not be granted unless the board is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the hearing. The board may stay deportation pending its determination of the motion and also pending the taking and disposition of an appeal from such determination. All requests for consideration must be filed within 15 days of receipt of the board's decision.

Once an order of deportation becomes final from the board, an alien, not in the physical custody of the office, shall be given not less than 48 hours advance notice in writing of the time and place of his/her surrender for deportation. If the alien fails to surrender as directed, he/she shall be deported without further notice when located. When an alien is directed to surrender for deportation, he/she shall do so notwithstanding the filing of an application for a stay of deportation unless the alien has been informed prior to the surrender date that a stay has been granted. The advance notice requirement above does not preclude taking an alien into custody at any time, including any time within the 48 hour period, if the alien's being at large constitutes a danger to public safety or security , or the immigration officer has reason to believe the alien is likely to abscond. However, in such an instance, the alien's deportation shall not be effective prior to the expiration of 48 hours from the time of apprehension or of the 48 hour notice period, whichever is less. An alien shall be taken into custody prior to the time specified in the surrender notice only pursuant to an order by a member of the board which authority to issue warrants of arrest.